Gilbert and Repatriation Commission - [2003] AATA 627

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 627

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1054

VETERANS' APPEALS DIVISION

Re: RAYMOND NOEL GILBERT

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member
Ms M.J. Carstairs, Member

Associate Professor J.H. Maynard, Member

Date: 2 July 2003

Place: Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member

VETERANS' AFFAIRS – application for special rate – whether war‑caused incapacity alone prevents undertaking remunerative work for more than eight hours per week – whether war‑caused incapacity prevents from continuing to undertake remunerative work – whether redundancy related to war‑caused incapacity

Veterans' Entitlements Act 1986

REASONS FOR DECISION

2 July 2003 Mr B.H. Pascoe, Senior Member

Ms M.J. Carstairs, Member
Associate Professor J.H. Maynard, Member

This an application to review a decision of the Veterans’ Review Board (VRB) dated 5 July 2001, which affirmed a decision of the respondent dated 19 June 2000 which refused a claim to have post traumatic stress disorder (PTSD) accepted as being war‑caused and assessed the veteran's rate of pension at 100 per cent of the general rate with effect from 9 March 2000. In this application, the veteran is not disputing the refusal of the claim for PTSD but is seeking an increase in pension to the special rate.
At the hearing, the applicant, Mr R. Gilbert, was represented by Mr C. Thomson, of counsel, and the respondent by Mr G. Purcell, of counsel. Evidence was given by Mr Gilbert; a consultant rheumatologist, Dr W. Kemp; a consultant psychiatrist, Dr L. Walton; and two former managers of the company by which Mr Gilbert was formerly employed, Mr G. Jackson and Mr K. Marshall. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Report by Dr J. Gelb, consultant psychiatrist, dated 1 July 2002     Exhibit A1
Report by Dr Kemp dated 27 September 2002  Exhibit A2
Applicant’s Income Tax Assessments – years ended
30 June 2000 and 2001  Exhibit A3
Statement by Mr Jackson dated 4 March 2003  Exhibit A4
Facsimile from Mr Jackson to Dr Gelb dated 20 June 2002             Exhibit A5
Report by Dr J. Chung, general practitioner, dated 8 April 2003      Exhibit A6
Federal Government Report Card – March 2003  Exhibit A7
Clinical notes of Dr Chung Nº 1‑73  Exhibit R1
Documents from RLM Systems Pty Ltd Nº 1‑25  Exhibit R2
Impairment Assessment by Dr Chung dated 29 November 1999     Exhibit R3
Report by Dr J. Lange, occupational physician,
dated 2 December 1999  Exhibit R4
Report by Mr H. Moss, orthopaedic surgeon, dated 30 April 2000   Exhibit R5
Impairment Assessment by Dr Chung dated 15 May 2000               Exhibit R6
VRB Transcript – Hearing of 5 July 2001  Exhibit R7
Report by Dr D. Barton, occupational physician,
dated 7 December 2001  Exhibit R8
Documents from Mercantile Mutual Worksure Ltd Nº 1‑51                Exhibit R9
Report by Dr Walton dated 30 April 2002  Exhibit R10
Impairment Assessment by Dr F.J. Morgan, senior medical
officer, dated 17 October 2002  Exhibit R11
Applicant’s income tax returns –
years ended 30 June 1996 to 2000  Exhibit R12
Statement by Mr R. Wilson, human resources manager,
RML Systems Pty Ltd dated 21 February 2003  Exhibit R13
Performance Appraisal of Mr Gilbert dated 10 June 1999                 Exhibit R14
File note, Department of Veteran's Affairs dated 27 February 2003 Exhibit R15
Mr Gilbert was born on 29 December 1936.. He served in the Australian Army (the army) from 7 June 1965 to 6 June 1971. He had eligible war service and operational service in South Vietnam from 9 January 1968 to 23 December 1968. He has accepted war‑caused conditions of cervical disc lesion, anxiety hysteria, discoid eczema and lumbar spondylosis. He lodged his claim on 9 March 2000 at age 63. He last worked in paid employment on 3 December 1999.
Mr Gilbert worked in ten‑pin bowling centres prior to his service in the army. After discharge in 1971, he returned to that same employment. He reached the level of regional manager. He was made redundant in 1989 following a restructure after a change of ownership of the American parent company. He became a security guard with Wormalds (later Chubb). In April 1995, the Chief Executive Officer of RLM Systems Pty Ltd (formerly Telstar Systems Pty Ltd) (RLM) offered Mr Gilbert the position of Facilities Manager with the company. The company then had a contract for the development of the Jindalee Over the Horizon Radar System.
Mr Gilbert said that his role was to ensure that the two buildings in which the company operated functioned efficiently. He appointed contractors and coordinated and supervised the fit out and renovation of the buildings. Initially, there were 200 employees, which increased to 600 during the term of his employment. Mr Gilbert said that, at times, he had difficulty with contractors who did not complete the work in time and frequently used strong language with them. He acknowledged that there had been an occasional suggestion that his language had been excessive and he was asked to tone down his attitude. However, Mr Gilbert maintained that contractors were paid to do the job and should get on with it and there were times when they need a swift kick. He considered his behaviour was appropriate for non‑performing contractors, where he was coordinating the overall project and the needs of 15 departments. He said there were occasional verbal stoushes with name calling and swearing. The Chief Finance Officer of the company had asked him to try to accomplish the work without outbursts. He maintained that he had never been formally warned or cautioned about his manner of dealing with the work. He said that he was concerned when others were prepared to accept lax performance.
Mr Gilbert said that he reported to Mr Marshall, the contracts manager at RLM. He did not particularly like or respect Mr Marshall. He said that, on 3 November 1999, he was informed by Mr Marshall that his position would be made redundant, effective 3 December 1999. He was handed a formal letter to that effect. He was informed that, owing to a reduction in work, the company had decided to merge the materials handling and facilities management into one position that would be occupied by the then materials handling manager. Mr Gilbert said that he accepted that the other manager was younger and more qualified than he and knew the company system. Mr Gilbert said that he served out the 4 weeks to see the job through as that was the way I was trained – to get the job done. He was offered outplacement services for 8 weeks but obtained no offers of employment. He did not seek nor was he given a reference from RLM. Mr Gilbert said that, during the 4‑week period to 3 December 1999 and then to March 2000, he verbally contacted 194 people, primarily contractors and others in the building industry with whom he had dealt during his period with RLM. Some were interstate and some in Singapore. He said that he was seeking a similar role to that at RLM. No person he spoke to had such a vacancy or was aware of one. He assumed that no contractor with whom he had argued in the past bore any grudge. Although there was no such comment made during any of the conversations, Mr Gilbert felt that his reputation for being difficult had spread. He has not actively sought work since March 2000. He said that, in late March 2000, he spoke to Chubb regarding possible security work but was told that only static work was available which was unlikely to suit him due to his back condition. Mr Gilbert had not retained any written list of those he called and relied on memory for the detail. He said that, by the end of March 2000, he realised that he was past the use by date.
Mr Gilbert acknowledged that he had participated in performance reviews within RLM since 1997 and the last of these was some five months prior to his redundancy. No adverse comments on his performance had been recorded at any performance review. He understood that he had been nominated for Achiever of the Year shortly before his redundancy. He had not been invited to the function held for the announcement of the winner and considered that it would have been embarrassing for the Chief Executive to announce his name after he had been made redundant.
Mr Gilbert said that there had been one or two redundancies in the company prior to his. At the same time as his position was made redundant there was one only other redundancy, being his administrative assistant. Mr Gilbert was convinced that the underlying reason for his redundancy was his aggressive manner and outbursts.
In his evidence, Mr Gilbert said that he had occasional difficulties with his back and neck when at work, particularly when he was required to rearrange furniture in the conference room. He kept a walking stick and back brace in his motor vehicle for use when his back became painful. He said he often needed to call for assistance from other staff when moving furniture. He has weekly physiotherapy treatment for his back and neck and, although there were no major problems, currently he does have some pain in the back and neck which can be exacerbated easily.
Mr Jackson first met Mr Gilbert when he was physical security manager with Telstra and Mr Gilbert was a rostered security guard. The association continued when Mr Jackson became information systems security officer with RLM and Mr Gilbert became facilities manager. They have remained friends subsequently. He said that Mr Gilbert had strong moral and ethical beliefs and would not step back from such beliefs in the face of intimidation. He said that, on occasions, he was concerned at Mr Gilbert's character swings from being polite and respectful to becoming vexatious with strong verbal haranguing of staff or contractors. Mr Jackson said that, on a number of occasions, he and other managers requested Mr Gilbert to tone down his attitude. In his statement of 4 March 2003 (Exhibit A4), Mr Jackson said that he agreed with Mr Marshall, contracts manager at RLM, that Mr Gilbert's interpersonal skills were not the mitigating factor in the decision to make him redundant. Mr Jackson acknowledged that he was involved in the performance appraisals of Mr Gilbert and these appraisals showed him as being above average other than in communication and teamwork. Mr Jackson recalled one incident, one complaint by the receptionist, that Mr Gilbert had thrown a set of keys at her. A meeting was called, chaired by Mr Marshall. Mr Jackson maintained that the merging of two positions after the redundancy of Mr Gilbert had not been successful.
Mr Marshall was the contracts manager at RLM from 1997 to 2002. He said that it was on his recommendation that the two positions should be merged and Mr Gilbert's position should be made redundant. He was definite that inappropriate behaviour was not the reason for the redundancy. He had a slight recollection of the key‑throwing incident but restated that there was no major issue with Mr Gilbert's behaviour. He believed it was a one‑off incident, which was not a major issue and had been dealt with promptly. He noted that performance appraisals were important and any problems of an employee would have been addressed within the appraisal. He was aware that there were areas such as response time to people needing things done where Mr Gilbert could improve but maintained that the overall view was that he got the job done. He was adamant that the redundancy was not related to Mr Gilbert's behaviour but an efficiency measure combining two positions into one with the other manager being better qualified for the merged position.
Dr Gelb examined Mr Gilbert and provided a report dated 25 October 2000 (T8) and a further report dated 1 July 2002 (Exhibit A1). In his first report, Dr Gelb was of the opinion that Mr Gilbert suffered from PTSD and, as a result of the severity of that untreated condition, was totally and permanently incapacitated for remunerative employment caused solely by that condition and its consequence. In his subsequent report, Dr Gelb considered that the earlier diagnosis of anxiety hysteria was not a currently recognised psychiatric diagnosis and the more appropriate diagnosis was PTSD. He was of the belief that Mr Gilbert was unable to work in paid employment for more than 8 hours per week. He attributed 80 per cent of the incapacity to PTSD and 20 per cent to the back and neck problems and did not believe that there were any other factors limiting his work capacity. It is clear that Dr Gelb accepted Mr Gilbert's view of the reasons for the redundancy, reinforced by the view of Mr Jackson provided in a facsimile of 20 June 2002 (Exhibit A5) and a letter from Ms D. Evans, a former human resources manager of RLM. Ms Evans had stated that, while Mr Gilbert was a valued employee who carried out his duties diligently, he was known to demonstrate inappropriate sudden and volatile bouts of temper requiring managers to counsel him on a number of occasions. In his oral evidence, Dr Gelb said that work had been a useful, therapeutic distraction for Mr Gilbert but this was not now available so that his condition had deteriorated. He accepted that irritability was not uncommon in the community but, in Mr Gilbert, it was part of a constellation of PTSD symptoms.
Dr Kemp examined Mr Gilbert on 17 June 2002 and provided a report dated 27 September 12002 (Exhibit A2). In that report, Dr Kemp stated:
…
In my [sic] from the physical assessment he would be fit for light work for more than eight but less than 20 hours each week, but unfit to work eight hours each week due to his nervous symptoms described as anxiety hysteria, which I believe would be better described as post traumatic stress disorder and which constitute a significant disability.
In my opinion he does not have any other medical conditions that may cause a disability for work and if post traumatic stress disorder is accepted in place of anxiety hysteria, his disability would be caused by his accepted conditions alone.
In my opinion he would be physically able to undertake light work as a Building Manager if he were not required to rearrange the furniture.

In his oral evidence, Dr Kemp said that he had understood that, prior to his redundancy, Mr Gilbert had worked less than 40 hours per week. When it was put to him that Mr Gilbert had calculated from his diaries that he had worked some 1000 hours in excess of 40 hours per week in each calendar year from 1995 to 1999 inclusive (T11, p.68), Dr Kemp acknowledged that it was likely that he could have continued working at least 40 hours per week. Dr Kemp acknowledged that his conclusions on the effect of Mr Gilbert's anxiety condition was based on Dr Gelb's report and his own observations. While he considered that Mr Gilbert's physical problems prevented him working full time, Dr Kemp considered that those problems were no worse than they would have been in 1999. Dr Kemp did not explain an apparent contradiction between his opinion that Mr Gilbert was physically unfit for more than 20 hours work each week but would be physically able to undertake light work as a building manager.

Dr Chung has been Mr Gilbert's general practitioner since 1982. In a report dated 8 April 2003 (Exhibit A6), he stated:
…
The above clinical progress notes show very clearly that Mr Gilbert was having frequent and deteriorating episodes of his chronic neck and back pain and discoid eczema. In addition, he has PTSD ("anxiety‑hysteria" as accepted by the Department of Veterans Affairs).
It is therefore my opinion that, whether he was made redundant or not, his work‑ability was reduced to such an extent that by March 2000, he would not have been able to continue his work.
It could be argued that one of the reasons he was made redundant was because of his medical conditions, in so far that his chronic pain and his "anxiety‑hysteria" would have affected him on a daily basis, and would have made him hard to work with, as testified by his close co‑workers, in particular Human Resources Manager, Ms Dianne Evans.

Dr Barton examined Mr Gilbert on 5 December 2001 and provided a report to the respondent dated 7 December 2001 (Exhibit R8). He was of the opinion that back and neck conditions would not prevent Mr Gilbert from working on a full time basis. He suggested that reduction in claimed work capacity was due to motivational factors and the redundancy rather than any change in physical condition. Mr Gilbert was examined also by Dr Lange on 25 November 1999 (Exhibit R4) and by Mr Moss on 20 April 2000 (Exhibit R5). Both were of the opinion that Mr Gilbert's back and neck problems would not prevent him undertaking full time work.

Dr Walton examined Mr Gilbert on 25 March 2002 and provided a report dated 30 April 2002 (Exhibit R10). In that report he stated:
…
In my opinion Mr. Gilbert would qualify for a clinical diagnosis of an anxiety disorder but the preferred current diagnosis would be that of a post‑traumatic stress disorder, although it would appear that the post‑traumatic symptoms have only become very troublesome for the veteran since he ceased work and it was only a matter of weeks prior to my assessment that Mr. Gilbert sought assistant from a mental health professional. However, it does seem that psychiatric issues were raised earlier with Dr. Chung, including prescription of Valium.

Dr Walton noted that Mr Gilbert had a history of successfully sustaining employment for many years, that work seems to have been a useful therapeutic distraction and that Mr Gilbert had reported that his condition had deteriorated since he ceased work so that there would be some minor partial incapacity for work. Dr Walton considered that Mr Gilbert was capable of undertaking remunerative work for more than 20 hours per week. He noted that any lack of motivation towards seeking work was likely to be a realistic resignation to the realities of the current workforce, especially given Mr Gilbert's age.

A statement by Mr Wilson, the human resources manager of RLM since August 2002, was tendered (Exhibit R13). Mr Wilson stated that he had examined the personnel files and could find no documented examples of performance counselling or behavioural issues in relation to Mr Gilbert. He noted the documentation relating to the redundancy with the decision to combine two positions and to retain the then materials manager who had a higher level of skill and specific expertise. A copy of Mr Gilbert's performance appraisal for the year to 30 June 1999, noted in summary, competent performance in all essential functions, objectives and competency areas. A proficient employee who consistently met expectations in overall performance (Exhibit R14). A handwritten summary, apparently by Mr Marshall, stated:
Ray has provided extremely valuable support during the period including a (?) of physical requirements that resulted in significant changes to the building layout. These changes were accomplished with minimum disruption to the relevant areas.
Mr Gilbert is seeking the special rate of pension under s.24 of the Veterans' Entitlements Act 1986 (the Act). This section provides:
24(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

There is no dispute that Mr Gilbert satisfied s.24(1)(aa), (aab) and (a) of the Act in that he made a claim on 9 March 2000, he was then 63 years of age and his degree of incapacity was in excess of 70 per cent. The first question for consideration is whether Mr Gilbert satisfied s.24(1)(b) in that his war‑caused conditions alone rendered him incapable of undertaking remunerative work for more than 8 hours per week. There were two medical opinions, that of Dr Gelb and of Dr Chung, that he satisfied this requirement. While Dr Kemp was initially of that view, he resiled from it at the hearing after consideration of the actual hours worked by Mr Gilbert up to the date of the redundancy. The remaining four medical opinions were that Mr Gilbert did not satisfy the requirement of this paragraph. Mr Gilbert, himself, was a credible, honest and forthright witness. It is clear from his evidence that, prior to the redundancy, he had no difficulty in working a full 40‑hour week at least. In a statement prepared for his advocate at the VRB hearing (T11), Mr Gilbert noted that he had worked 995 hours in excess of the standard 1920 hours (40 hours x 48 weeks) in 1999. He stated that In the last year I did cut down a lot of my work load i.e. started at 0800 hrs instead of earlier and left at 1700 hrs instead of later, it would sometimes be 2100 hrs.. There was nothing in his evidence that suggested that he was unable to work a full 40-hour week at the time of the redundancy or at any time during the assessment period (s.19(9)). His attempts at finding other employment were directed towards equivalent employment to that of the prior 4 years. There was no suggestion at that time of his employment capabilities being for anything less than a full working week. Dr Gelb's view that the applicant was totally and permanently incapacitated appeared to be based on a suggested deterioration of Mr Gilbert's condition after the loss of employment, which had been a useful therapeutic distraction for his PTSD. The implication is that subsequent employment, if available, would have continued that distraction and allowed him to undertake full time employment. We are satisfied, on the evidence, that Mr Gilbert's war‑caused conditions did not prevent him undertaking remunerative work on a full time basis, at least during the period from the date of his redundancy until he reached 65 years of age. As at the date of the hearing, the evidence of Mr Gilbert indicated that, if an appropriate position became available, he could undertake remunerative work for more than 20 hours per week.
As we have found that Mr Gilbert did not satisfy s.24(1)(b), it is unnecessary to consider s.24(1)(c). However, even if we were incorrect in our finding under paragraph 24(1)(b), we find that he did not satisfy paragraph 24(1)(c). The preponderance of the evidence is that reasons other than Mr Gilbert's war‑caused conditions accounted for him ceasing to engage in remunerative work. He had a suspicion that his outbursts and temper were a contributing factor. Mr Jackson had a similar suspicion but he acknowledged in his evidence that this was not the reason for the redundancy. The Tribunal prefers the evidence of Mr Marshall, who recommended the redundancy, that it arose from a commercial efficiency decision and had nothing to do with Mr Gilbert's manner. The favourable report on his performance review, the absence of formal counselling, and a nomination of Mr Gilbert as achiever of the year, all indicate that Mr Gilbert's psychiatric or physical conditions did not contribute to his cessation of employment.
The Tribunal does not accept that Mr Gilbert genuinely sought subsequent employment and have no evidence, apart from the inference that the applicant suggested should be drawn, that indicates that any failure to obtain employment bore any connection with any war‑caused incapacity. Mr Gilbert said that he made 194 telephone calls between the announcement of his redundancy and March 2000. These calls were made primarily in December/January, a notoriously poor time of the year for job hunting, were made to contractors and people in the building industry with whom he had dealt and were solely directed at seeking a similar role to that he had occupied at RLM. He said that no person to whom he spoke was aware of such a vacancy. However, the role he sought was likely to be with a client or customer of such persons rather than in their own organisation. He made no attempt to seek work after March 2000, 3 months after his redundancy. He was then 63 years of age and jobs are difficult to find for persons of that age. In his submission, Mr Thomson noted that the Government Report Card (Exhibit A7) described the past 7 years had been a period of phenomenal job growth and suggested therefore that Mr Gilbert's inability to obtain employment was substantially due to his war‑caused disabilities. We do not accept that submission. The Tribunal was satisfied that Mr Gilbert did not meet the requirements of s.24(2)(b) of the Act.
On the basis of the foregoing findings, we are satisfied that Mr Gilbert does not qualify for the special rate of pension under s.24 of the Act. While not argued directly at the hearing, Mr Thomson submitted that the requirements of s.23 for the intermediate rate of pension would be satisfied. This section is in similar terms to s.24 but applies where a veteran is incapable of undertaking remunerative work otherwise than on a part time basis or intermittently, defined as less than 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full time basis or less than 20 hours per week. For the same reasons as stated in relation to s.24, we are satisfied that Mr Gilbert does not meet the requirements of s.23(1)(b) of the Act.
It follows that the decision under review should be affirmed.

I certify that the twenty‑two [22] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member
Ms M.J. Carstairs, Member

Associate Professor J.H. Maynard, Member

(sgd) Catherine Thomas
Clerk

Date of Hearing: 05 March 2003
17 April 2003

Date of Decision:  02 July 2003
Counsel for applicant:                  Mr C. Thomson
Solicitor for the applicant:            Peter J. Liefman
Counsel for the respondent:        Mr G. Purcell
Solicitor for the respondent:         Advocacy Section, Department of Veterans’ Affairs